One-Way Ticket Home: the Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L

Cornell Law Review Volume 77 Article 5 Issue 3 March 1992

One-Way Ticket Home: The edeF ral Doctrine of Forum Non Conveniens and the International Plaintiff Jacqueline Duval-Major

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Recommended Citation Jacqueline Duval-Major, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L. Rev. 650 (1992) Available at: http://scholarship.law.cornell.edu/clr/vol77/iss3/5

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I INTRODUCTION Forum non conveniens is a common law doctrine that allows a court to dismiss a case, although personal jurisdiction and venue are proper, when such a dismissal would serve the convenience of the parties and the ends ofjustice.I Although the development of section 1404(a) transfers has fundamentally limited forum non conveniens, 2 the doctrine retains some vitality at the federal level when the alternative forum is a foreign court rather than another district court in the United States.3 Only defendants may invoke the doctrine of forum non con- 4 veniens, because plaintiffs have the original choice of forum. United States-based multinational corporations (MNCs) constitute the main group of defendants who currently benefit from the doctrine.5 Frequently, MNCs are the defendants in actions by foreign

1 See generaily Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 COLUM. L. REV. 1 (1929). See also Edward L. Barrett, Jr., The Doctrine of Forum Non Conveniens, 35 CAL. L. REV. 380 (1947); Alexander M. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty, 35 CORNELL L.Q. 12 (1949). 2 28 U.S.C. § 1404(a) (1990). See infra notes 42-54 and accompanying text. 3 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (holding that transfer is not applicable because there is no alternative district court and a United States court has no power to transfer a case to a foreign court). 4 In contrast, either a plaintiff or defendant can move to transfer under § 1404(a). See Ferens v. John Deere Co., 494 U.S. 516 (1990); infra notes 46-47. 5 These cases generally involve injuries that occur in a foreign nation, yet are allegedly attributable to the activities of a United States MNC. See, e.g., Stewart v. Dow Chem. Co., 865 F.2d 103 (6th Cir. 1989) (Canadian plaintiff suing U.S. manufacturer of toxic herbicides); Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374 (5th Cir. 1988) (Brazilian seaman killed in diving accident suing U.S. manufacturer of diving hel- met); DeMelo v. Lederle Lab., 801 F.2d 1058 (8th Cir. 1986) (Brazilian plaintiff suing U.S. producer of drug on products liability basis); Sibaja v. Dow Chem. Co., 757 F.2d 1215 (1 1th Cir. 1985) (Costa Rican workers suing U.S. producer of chemical alleging exposure caused sterility); Dahl v. United Technologies Corp., 632 F.2d 1027 (3d Cir. 1980) (Norwegian plaintiffs suing U.S. manufacturer of helicopter for injuries sustained in crash); Ball v. Deere & Co., 684 F. Supp. 1455 (C.D. Ill. 1988) (Canadian plaintiff suing U.S. combine manufacturer for injuries); Ledingham v. Parke-Davis, 628 F. Supp. 1447 (E.D.N.Y. 1986) (Canadian plaintiff suing U.S. manufacturer of drug alleging mother's use during pregnancy caused birth defects); Fraizer v. St. Jude Medical, Inc., 609 F. Supp. 1129 (D. Minn. 1985) (Danish citizens suing U.S. manufacturer of heart valve on products liability theory); Rubenstein v. Piper Aircraft Corp., 587 F. Supp. 460 (S.D. Fla. 1984) (German plaintiffs suing U.S. manufacturer of airplane for wrongful 650 1992] NOTE-FOR UM NON CONVENIENS plaintiffs for injuries that have occurred in a foreign country, and they often invoke the doctrine of forum non conveniens to avoid defending these claims. This application of the doctrine, however, allows MNCs to evade responsibility for serious harms they cause, and leaves the foreign plaintiffs with limited recourse in a foreign forum due to the outcome determinative effect of dismissal. 6 This Note explores the current federal doctrine of forum non conveniens as applied to the foreign plaintiff. It examines the policy concerns and arguments that call for the doctrine's modification to comport more closely with the modern technological advances available to litigants and the realities facing foreign plaintiffs seeking justice in United States courts. Further, this Note argues that, in many cases, the current "minimum contacts" test for personal jurisdiction 7 already takes the convenience of the parties into account and screens out cases that would improperly impose on the power of a court.8 Also, forum non conveniens will cause some foreign plaintiffs dismissed from United States courts to face harsh conse- quences. These plaintiffs may have limited or no recourse in any alternative forum. This Note urges that the United States has a vital policy interest in not allowing United States MNCs to escape liability for personal injuries and environmental torts even when the primary effects of these harms are felt abroad. The Note proposes that the doctrine of forum non conveniens itself needs to be re-examined, because it fails to adequately serve the interests it purports to protect. Modern technological advances in transportation and communications make any forum more convenient today than when the doctrine was first adopted by the Supreme Court in 1947.9 In addition, although courts find forum non conveniens alluring as a method of docket-clearing, the doctrine does not fully accomplish this- task. 10 Finally, a grant of dismissal for forum non conveniens is based on a vague set of factors that leaves much to the discretion of the trial court. 1 This unclear standard has been further diluted since the original adoption of the test in 1947.12 Moreover, appellate re- death); Agyenkwa v. American Motors Corp., 622 F. Supp. 242 (E.D.N.Y. 1985) (Ghana citizen suing U.S. manufacturer of automobile). 6 For a discussion of the outcome determinative effect of forum non conveniens dismissals, see infra notes 164-71 and accompanying text. 7 International Shoe Co. v. Washington, 326 U.S. 310 (1945). 8 Id. at 317. See infra notes 105-46 and accompanying text. 9 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). 10 See infra notes 199-203 and accompanying text. 11 See infra notes 27-40 and accompanying text. 12 See ifra notes 211-24 and accompanying text. 652 CORNELL LA W REVIEW [Vol. 77:650 view is limited to an abuse of discretion standard,' 3 and dismissals are virtually never overturned. This Note argues for three modifications to the modern doctrine of forum non conveniens. First, it calls for an abolition of the modern presumption that a foreign plaintiff's choice of forum is entitled to little deference in United States courts. Second, it prescribes a stricter, more specific test for determination of the appropriateness of an invocation of forum non conveniens. Third, the Note emphasizes the need for de novo appellate review of a trial court's determination of forum non conveniens. If the rationale for forum non conveniens is to serve "the ends of justice,"'14 then justice requires these modifications to forum non conveniens to reflect fairness to all litigants.

II MODERN APPLICATION OF FORUM NON CONVENIENS

A. Background Forum non conveniens is a judicially created doctrine that first gained official approval in the United States federal courts in 1947 with the Supreme Court case Gulf Oil Corp. v. Gilbert.15 The doctrine allows a court to "resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute."1 6 The effect of a finding of forum non conveniens is dismissal of the action.1 7 Because dismissal is a harsh result for plaintiffs, courts may impose the doctrine only when an alternative forum exists.' An alternative forum, as described by the Gulf Court, is simply one where the defendant is "amenable to process."' 9 The rationale for forum non conveniens is to prevent a plaintiff from invoking the power of the court to harass a defendant. 20 Even if the litigants are within the court's jurisdiction, the court may dismiss the case when it believes the plaintiff is using an inconvenient forum merely to antagonize the defendant, or when the cause of

13 Gulf, 330 U.S. at 508. 14 Id. at 507. 15 330 U.S. 501 (1947). However, the GufCourt did note that the Court had recognized a federal court's power to decline jurisdiction in the past, albeit under different nomenclature. Id. at 504-06. State courts adopted the doctrine earlier. Id. at 505 n.4. 16 Id. at 507. 17 Only a defendant can move for a forum non conveniens dismissal, whereas either party can move for a change of venue under 28 U.S.C. § 1404(a) (1990). See infra notes 46-47 and accompanying text. 18 Gulf, 330 U.S. at 507. 19 Id. 20 Id. 1992] NOTE-FORUM NON CONVENIENS 653 action has no bearing on the community served by the court.21 For example, a plaintiff may endure great personal inconvenience in order to sue a defendant in a forum which has little connection to the cause of action, but which she knows is equally inconvenient to the defendant. The plaintiff chooses this forum to make the trial more burdensome for the defendant, perhaps in hopes of coercing a set- tlement. Forcing the court to spend valuable judicial resources in such a case constitutes an abuse of the judicial system, and the court should apply the doctrine of forum non conveniens to dismiss the case if a more convenient and fair forum exists. Cases such as this, in which a court properly invokes the doctrine, reflect some kind of an "imposition" 22 on the jurisdiction of the court and an unwar- ranted burden on the court's facilities. Forum non conveniens should serve to weed out harassing, "vexatious" suits,23 and ad- vance the convenience and interests of both the parties and the 4 forum.2

B. Development of the Federal Doctrine of Forum Non Conveniens 1. Gulf Oil Corp. v. Gilbert The United States Supreme Court laid out the basic principles for federal court application of forum non conveniens in Gulf Oil Corp. v. Gilbert.25 Although the Court recognized that application of forum non conveniens in the United States originated in state courts,26 it upheld the use of the doctrine within federal courts. The Court developed a balancing test, consisting of "private" and "public" factors, which should guide a court in determining whether a forum non conveniens dismissal is appropriate. 27 The private interests articulated in Gulf are those of the litigants: Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case

21 Id. at 507, 508-09. 22 Id. at 507. 23 Id. at 508. 24 Id. at 508-09. Forum non conveniens may be seen as a function of the administration of the courts more than as a task of adjudication. See Koster v. (American) Lum- bermens Mut. Casualty Co., 330 U.S. 518, 526 (1947). 25 330 U.S. 501 (1947). 26 Id. at 505 n.4. 27 Id at 508. The specific question of whether the state or federal doctrine of forum non conveniens should apply raises a choice of law question based on the Erie doctrine. See infra text accompanying notes 91-101. 654 CORNELL LA W REVIEW [Vol. 77:650 easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained.28 Public interests of the court and community comprise the second set of factors in the Gulf balancing test. These interests inclide alleviation of congested court dockets, jury duty unfairly imposed on those with no real relation to the outcome of the litigation, and the "local interest in having localized controversies decided at home."' 29 The Gulf Court created a presumption in favor of the plaintiff when it stated that "unless the balance [of these factors] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 30 The Gulf Court then applied this balancing test to the facts of the case. The case involved a resident of Virginia who sued a Penn- sylvania corporation, on diversity of citizenship grounds, in a New York federal district court.31 The Court first found that the New York district court properly had jurisdiction over the defendant by virtue of service of process upon an appointed agent in New York,32 and that the parties also satisfied the venue statute.33 However, the Court dismissed the suit based on forum non conveniens because none of the parties resided in New York, no event connected with the cause of action took place there, and none of the witnesses lived there. 34 Although the Court found that jurisdiction and venue requirements were fulfilled, it nevertheless dismissed the suit based on forum non conveniens. 35 In doing so, the Court found that both the private and public interests in the case weighed in favor of grant- 6 ing the dismissal.3

28 Id. 29 Id. at 508-09. 30 Id. at 508. This standard for granting dismissal under the doctrine of forum non conveniens has been watered down by the federal courts over the years. See infra notes 211-24 and accompanying text. Stricter deference to plaintiff's choice of forum, unless the balance of factors strongly and definitively points toward dismissal, is critical to the continued vitality of the doctrine of forum non conveniens. See infra notes 233-35 and accompanying text. 31 330 U.S. at 502-03. 32 Id. at 503. 33 ld at 504. 34 Id. at 510. The only rationale offered for the choice of New York as the place of trial was the presumption that Virginia jurors would be "staggered" by the high damages the plaintiff was requesting. Id. at 504. 35 Ido at 504 ("Indeed, the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of venue."). Id. 36 The sources of proof, both tangible evidence and witnesses, were in Virginia. The defendant would have had difficulty compelling some of the witnesses to travel the 400 miles from the accident site to the site of the trial. The Court also referred to the local interest in adjudicating local controversies and the unfairness of imposing jury duty on the citizens of New York, who had no interest in the outcome of the case. Id. at 508-11. 1992] NOTE-FORUM NON COAWENIENS 655

Although the Court balanced private and public interests to re- solve the forum non conveniens inquiry, it made no attempt to list specific circumstances which would justify a ruling for or against dismissal based on forum non conveniens, stating that no "express cri- teria" exist.3 7 Instead, the Court prescribed as guidance the "private" and "public" interest balancing test discussed above.3 8 This refusal to elaborate the correct factors for determination of forum non conveniens entrusts a high level of discretion to the trial court. The Gulf Court intended the factors included in the public- private balancing test to be examples, not an exhaustive list of the correct factors a court should examine.3 9 The Gulf Court's unwilling- ness to formulate a specific test has resulted in a vague and manipu- lable modem doctrine of forum non conveniens. Consequently, the doctrine's application effectively allows for the possibility that different trial courts may reach disparate conclusions given very similar factual situations.40 The Gu/f Court also articulated an appellate standard of review for forum non conveniens cases. Because the trial court is the best arbiter of any attempt by a plaintiff to abuse the power of the court, the Supreme Court decided that a reviewing court should only overturn the trial court's determination for an abuse of discretion.4 1 Thus, even if trial courts reach disparate results given similar fact patterns, appellate courts will not reverse a dismissal based on forum non conveniens unless an abuse of discretion has occurred.

2. The Development of the Section 1404(a) Transfer

The next step in the development of the federal application of forum non conveniens occurred when Congress enacted the section 1404(a) change of venue transfer.42 Enacted in 1948 in response to the Supreme Court's decision in Gulf Oil Corp. v. Gilbert,43 the statute states: "For the convenience of parties and witnesses, in the interest

37 Id. at 507. 38 Id. at 508 ("[lt has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy.") Id. 39 Id. 40 See infra notes 211-24 and accompanying text. 41 330 U.S. at 508. The importance of this standard is discussed, infra notes 211-25 and accompanying text. The abuse of discretion standard, coupled with the lack of con- crete guidelines given by the Gulf Court, allows trial judges to impose forum non conveniens dismissals for what may be insufficient reasons. 42 28 U.S.C. § 1404(a) (1990). 43 330 U.S. 501 (1947). See supra notes 25-40 and accompanying text. See also Nor- wood v. Kirkpatrick, 349 U.S. 29, 30-32 (1955) (explaining that 28 U.S.C. § 1404(a) was a revision and not a codification of the existing law of forum non conveniens). 656 CORNELL LA W REVIEW [Vol. 77:650

of justice, a district court may transfer any civil action to any other 44 district or division where it might have been brought."' The statute limited the applicability of forum non conveniens for most cases in federal courts. Cases were no longer subject to dismissal under forum non conveniens if there was an alternative forum within the United States federal court system. Unlike a finding of forum non conveniens, which results in an outright dismissal of the case, 45 a section 1404(a) transfer merely moves the case to 46 another district court. Even the applicable law remains the same. Furthermore, either a plaintiff or defendant can move for a section 1404(a) transfer, while only the defendant may seek a forum non 47 conveniens dismissal. Because the result of a section 1404(a) transfer is not dismissal, but rather transfer, courts have required a lower threshold of inconvenience than originally required for forum non conveniens.48 In Norwood v. Kirkpatrick,49 the Supreme Court endorsed this lower standard for the grant of transfer, stating that it comported with congressional intent.50 Similarly, in Piper Aircraft Co. v. Reyno, 51 the Supreme Court stated that "[a]lthough the statute was drafted in accordance with the doctrine of forum non conveniens .... it was intended to be a revision rather than a codification of the common law."' 52 Accordingly, courts "were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non ' 53 conveniens.

44 28 U.S.C. § 1404(a) (1990). 45 This dismissal presupposes the existence of an alternative forum. 46 In § 1404(a) transfers, the court must apply the law that the transferor court would apply. Van Dusen v. Barrack, 376 U.S. 612, 639 (1964). This is true whether it is the plaintiff or the defendant who moves for the transfer. Ferens v.John Deere Co., 494 U.S. 516 (1990). 47 Ferens, 494 U.S. at 519. 48 Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955). See also Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (discussing Norwood and the lower standard afforded § 1404(a) transfers). 49 349 U.S. 29 (1955). 50 Id. at 32. In this case, dining car employees sued a railroad under the Federal Employers' Liability Act. The employees moved to dismiss the case or, in the alternative, to transfer under § 1404(a). The Supreme Court granted the motion for transfer. 51 454 U.S. 235, 253 (1981). 52 Id. at 253. 53 Id. See also Norwood, 349 U.S. at 32 ("When Congress adopted § 1404(a), it intended to do more than just codify the existing law on forum non conveniens."); Van Dusen v. Barrack, 376 U.S. 612, 622 (1964) (lower showing of inconvenience needed for § 1404(a) transfer as this is just a "federal housekeeping measure."). However, this more relaxed standard has spilled over into courts' determinations of forum non conveniens. See infra notes 211-24 and accompanying text. 1992] NOTE-FOR UM NON CONVENIENS 657 3. Piper Aircraft Co. v. Reyno With the enactment of section 1404(a) transfers, it appeared that forum non conveniens dismissals were no longer a possibility in federal courts. However, a section 1404(a) transfer operates only 4 when the alternative forum is another United States district court.5 In Piper Aircraft Co. v. Reyno, 55 the Supreme Court applied the doctrine of forum non conveniens when the alternative forum was a foreign country.56 Since federal courts have no power to transfer the case to a foreign forum, dismissal was the only remedy. Although the Gulf Court held that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed," 57 the Piper Court modified this standard and held that the plaintiff's choice of forum carried "little weight" when the plaintiff is not a United States citizen or resident.58 The Court justified this distinction by stating that when the plaintiff chooses his or her home forum, the Court assumes this choice to be convenient (one of the central purposes of forum non conveniens), but this presumption of convenience is much less rea- 5 9 sonable when dealing with foreign plaintiffs. In so holding, the Piper Court relied on Koster v. (American) Lum- bermens Mutual Casualty Co. ,60 the companion case to Guf Oil Corp. v Gilbert.61 In Koster, the Court explained the rationale for deference to the citizen plaintiff: [The plaintiff] should not be deprived of the presumed advan- tages of his home jurisdiction except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant to be out of all proportion to plaintiff's convenience,

54 The statute states that the court may transfer the case "to any other district court or division where it might have been brought." 28 U.S.C. § 1404(a) (1990). 55 454 U.S. 235 (1981). 56 The question presented on appeal in Piperwas whether an unfavorable change in law in the foreign forum should be given substantial weight in the determination of forum non conveniens. The Court did not address the possibility that the doctrine itself might need re-examination. Id at 238. 57 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). 58 Piper, 454 U.S. at 242. Although Reyno herself was a United States citizen, she was not the real party of interest in the case. The real parties in interest were Scottish citizens, and the Supreme Court upheld the district court's finding that they were enti- fled to little deference. Id. "Reyno candidly admits that the action... was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland." Id. at 240. 59 Id. at 255-56. 60 330 U.S. 518 (1947). In Koster, the Supreme Court examined the applicability of forum non conveniens to shareholder derivative suits. The plaintiff, a member of the class of shareholders, was a resident of New York and sued an Illinois corporation in the district court for the Eastern District of New York. Id. 61 330 U.S. 501 (1947). 658 CORNELL L4 W REVIEW [Vol. 77:650

which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems. In any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh 62 the inconvenience the defendant may have shown. In most modem applications of forum non conveniens, foreign plaintiffs' forum choices now face a presumption of inconvenience in suits against United States-based MNCs. 63 The Piper Court's rationale for this presumption of inconvenience was that it is "less reasonable" to assume that the foreign plaintiff's choice of forum is convenient. 64 This rationale seems weak, especially given the Court's statement that flexibility is so vital to the forum non conveniens inquiry. 65 The Piper Court also held that "[t]he possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry." 66 The result of granting this factor conclusive weight would be a denial of dismissal, even when the chosen forum is "plainly inconvenient." 67 However, if the change in law provided a "clearly inadequate" rem-

62 Id.at 524. 63 For a discussion of how this presumption benefits United States MNCs, see supra notes 4-6 and accompanying text. A further complication affecting the forum non conveniens inquiry is the impact of treaty rights granting certain foreign plaintiffs equal access to the courts of this country. Professor Allan J. Stevenson discusses the treaties and the standards used to interpret them vis vis forum non conveniens. See Allan J. Stevenson, Forum Non Conveniens and Equal Access under Friendship, Commerce, and Navigation Treaties: A Foreign Plaintif's Rights, 13 HASTINGS INT'L & COMp. L. REv. 267 (1990). These treaties generally include a clause promising foreign citizens equal access to the United States court system. Id. at 267. The cases that have interpreted the treaty rights hold that: when a foreign plaintiffsues in a United States court and is entitled to the benefit of equal access under a [friendship, navigation, or commerce] treaty, the United States court is obligated to apply the same forum non conveniens standards as it would apply to a nonresident United States citizen plaintiff suing on diversity grounds. Id. at 277-78. When a court determines that a United States citizen's cause of action can be dismissed (assuming the impossibility of a § 1404(a) transfer), a foreign citizen's claim may also be dismissed. The only advantage gained by the foreign plaintiff through the existence of these treaties is that the Piper standard, which calls for less deference to a foreign plaintiff's choice of forum, does not apply. See Piper, 454 U.S. at 256. Nevertheless, this deference is just one element of the current forum non conveniens inquiry, and does not mean that judges, in their discretion, will not still find forum non conveniens dismissal appropriate. Thus, Professor Stevenson argues that the foreign plaintiff's treaty rights are "much less valuable than they appear at first glance when looking at the words... 'equal access.'" Stevenson, supra, at 284. (4 Piper, 454 U.S. at 256. 65 Id. at 250. 66 Id. at 247. 67 Id. at 249. 1992] NOTE-FORUM NON CONVENIENS 659 edy, the Court intimated that this could carry "substantial" weight. 68 The Court, however, did not articulate exactly what constitutes a "clearly inadequate" remedy.69 The Piper Court further noted that no one factor should carry dispositive weight; otherwise, "the forum non conveniens doctrine would lose much of the very flexi- 70 bility that makes it so valuable."

C. Forum Non Conveniens in State Law

1. The Example and Exception of Texas The doctrine in state courts generally follows the federal standard articulated in Gulf and Piper, with few modifications. 7 1 The Texas Supreme Court, however, has provided a noted exception to this trend in Dow Chemical Co. v. Castro Alfaro.7 2 In Dow, the court held that forum non conveniens does not apply to wrongful death or personal injury actions brought under the Texas Wrongful Death Act.78 Male Costa Rican banana plantation workers brought an action in a Texas state court, alleging that they were sterile because of their exposure to a pesticide manufactured by Dow Chemical Com- 74 pany and Shell Oil Company, both United States-based MNCs. Although the injuries occurred in Costa Rica, the plaintiffs main- tained that many of the documents and witnesses relevant to the chemical in question were in Texas. 75 Dow and Shell moved for a dismissal based on forum non conveniens. 76 The trial court granted the motion despite a finding ofjurisdiction, but the court of appeals reversed.77 The Texas Supreme Court affirmed the court of ap-

68 Id at 254. 69 Id Presumably this is another factor that is left to the trial court's discretion. 70 Id. at 250. 71 The roots of the federal doctrine are grounded in state law. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505 n.4 (1947). For a discussion of state forum non conveniens doctrine, see David W. Robertson & Paula K. Speck, Access to State Courts in Transnational PersonalInjury Cases: Forum Non Conveniens &Antisuit Injunctions, 68 TEx. L. REv. 937, 950 (1990). The authors maintain that 32 states have adopted something closely resembling the federal standard of forum non conveniens, and only three states (Louisiana, Geor- gia, and Texas) have rejected the doctrine. Id. at 950. 72 786 S.W.2d 674 (Tex. 1990), cert. denied, 111 S. Ct. 671 (1991). 73 TEx. Civ. PRAC. & REM. CODE ANN. § 71.031 (West 1986). The law states: (a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country. 74 Dow, 786 S.W.2d at 674-75. 75 Id. at 681 (Doggett, J., concurring). In fact, Shell Oil's world headquarters was located less than three blocks from the courthouse, and Dow Chemical operated the country's largest chemical plant in Texas. Id. at 680. 76 Id. at 675. 77 Alfaro v. Dow Chem., 751 S.W.2d 208 (Tex. Ct. App. 1988). 660 CORNELL LA W REVIEW [Vol. 77:650

peals, holding that the Texas Wrongful Death Act statutorily abolished the common-law doctrine of forum non conveniens. 78 The Texas Supreme Court's decision in Dow is controversial. 79 Justice Doggett, in a long concurrence, laid out a number of policy reasons for the abolition of forum non conveniens. His major concern was that forum non conveniens dismissals shield MNCs from responsibility for their actions.80 He asserted that the threat of civil liability may be "the most effective restraint on corporate miscon- duct," and dismissal of a case based on forum non conveniens removes this threat.8' Justice Doggett also criticized the doctrine that has developed since Gulf Oil Corp. v. Gilbert,8 2 stating that the application of the private and public factors articulated in that case has failed to promote fairness and convenience. He found, instead, that MNC defendants use the private-public factor test to avoid re- 3 sponsibility for their actions.8 Furthermore, Justice Doggett postulated that the private factors mentioned in Gulf have become largely irrelevant in light of advances in transportation and communication.8 4 These advances have made it more convenient to hold a trial far from the situs of the accident. Justice Doggett also lashed out at the dissent, admonish- ing "their zeal to implement their own preferred social policy that Texas corporations not be held responsible at home for harm caused abroad."85 Finally, Justice Doggett recognized the outcome determinative nature of a dismissal based on forum non conveniens.8 6 Although such a dismissal requires that an alternative forum be available, the reality is that the plaintiff is often denied recovery. In Dow, the maximum the plaintiffs could recover for their injuries in Costa Rica was $1080.87 Given the harsh result facing the plaintiffs in Costa Rica, a

78 Dow, 786 S.W.2d at 674. 79 See, e.g., Bill C. Anderson, Comment, Dow Chemical Co. v. Alfaro: Forum Non Conveniens-Now Isn't That Convenient, 42 BAYLOR L. REV. 375 (1990) (asserting that the Texas Supreme Court misinterpreted the legislative intent of the Texas Wrongful Death Act); Gary D. Sanders, Note, A Foreign Plaintiff Has an Absolute Right to Maintain a Personal Injury Cause of Action in Texas Without Being Subject to Forum Non Conveniens Dismissal: Alfaro v. Dow Chemical Co., 751 S.W.2d 208 (Tex. App.-Houston fist Dist.] 1988, writ granted), 20 TEX. TECH. L. REV. 995 (1990). 80 786 S.W.2d at 680-83 (Doggett, J., concurring). 81 Id. at 689. 82 330 U.S. 501 (1947). 83 786 S.W.2d at 683 (Doggett, J., concurring). 84 Id. at 684. 85 Id. at 680. 86 Id. at 682. For a discussion of the outcome determinative nature of a forum non conveniens dismissal, see infra text accompanying notes 164-71. 87 Id. at 683 n.6. 1992] NOTE-FORUM NON CONVENIENS dismissal from the Texas Court would have left them with little or no recourse for the harm they suffered. The dissent in Dow worried about Texas becoming the "world's forum of final resort."88 The addition of foreign litigants to already crowded dockets would "forc[e] . . residents to wait in the corri- dors of our courthouses while foreign causes of action are tried."8 9 Another consequence implied by one of the dissenters was the possible flight of employers, businesses, and visitors from Texas: "As courthouse for the world, will Texas entice employers to move here, or people to do business here, or even anyone to visit? . . . Who gains? A few lawyers, obviously. But who else?" 90

2. The Effect of State Forum Non Conveniens Doctrine in the Federal Courts The differences between federal and state doctrines of forum non conveniens are important when a federal court faces choice of law questions in diversity of citizenship actions under the doctrine of Erie RailroadCo. v. Tompkins. 91 The Supreme Court has never definitively decided whether a federal court sitting in diversity must apply the federal or state standard of forum non conveniens. Be- cause state law generally mirrors the federal standard, the Court has always been able to sidestep this issue.92 The Erie question has arisen in the federal court system when the state and federal law of forum non conveniens differ. The courts that have dealt with the question generally have held that the federal

88 Id. at 690 (Phillips, C.J., dissenting). ChiefJustice Phillips,Justice Gonzalez, Jus- tice Hecht, and Justice Cook dissented from the court's opinion. 89 Idr at 690 (Gonzalez, J., dissenting). 90 Id. at 707 (Hecht, J., dissenting). 91 304 U.S. 64 (1938). Though beyond the scope of this Note, the answer to the Erie choice of law question implicates important issues of federalism. Under the rule laid down in Klaxon Co. v. Stetnor Elec. Mfg., 313 U.S. 487 (1941), state choice of law rules apply in diversity of citizenship cases. However, the federal courts are presently able to avoid possible disadvantageous treatment of United States-based MNCs by dismissal of the cause of action under forum non conveniens. In this way, federal courts are circuitously supplanting important state policy choices and preventing the extraterritorial application of state law. Cf EEOC v. Arabian Am. Oil Co., 111 S. Ct. 1227 (1991) (holding that federal statutes do not apply outside the United States absent explicit evidence of congressional intent.). For a comprehensive analysis of the Erie doctrine and court access issues (including forum non conveniens), see Allan R. Stein, Erie and Court Access, 100 YALE LJ. 1935 (1991). See also Laurel E. Miller, Comment, Forum Non Con- veniens and State Control of Foreign PlaintiffAccess to US. Courts in InternationalTort Actions, 58 U. Cm. L. REv. 1369 (1991). 92 See, e.g., Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 150 (1988). CORNELL LA W REVIEW [Vol. 77:650

standard should apply. 93 In Sibaja v. Dow Chemical Co.,94 the Elev- enth Circuit applied the federal standard of forum non conveniens despite the fact that the application of the federal rule altered the outcome of the case. The court stated that the application of federal law was required because a rule of venue was not a rule of"substantive" law that went to the character of the controversy.95 In In re Air Crash Disaster near New Orleans, LA, 96 the Fifth Circuit Court of Appeals also applied the federal standard. The court recognized that it could not sidestep the issue because Louisiana's law was very different from the federal law.97 Looking to the first aim of the Erie doctrine, deterrence of forum shopping, the court found that application of state law was more appropriate.98 Applying federal law would promote forum shopping because the federal standard would affect the outcome of the case: plaintiffs would be barred from bringing their claim, whereas, under Louisiana law, they would be able to proceed with the trial on the merits.99 However, when faced with the second aim of Erie, deterrence of inequitable administration of the laws, the court found federal law most suitable. The court interpreted "inequitable administration of the laws" to mean the "federal courts' own interests in equitable self-determination." 100 In the end, the court realized that the decision came down to a choice between these two aims, and held that the federal interest in self-regulation and administrative independence outweighed the "disruption of uniformity" between the state and federal courts that would result from application of the federal standard.10

93 In re Air Crash Disaster near New Orleans, LA, 821 F.2d 1147 (5th Cir. 1987), cert. granted, 490 U.S. 1032 (1989); Sibaja v. Dow Chem. Co., 757 F.2d 1215 (11th Cir. 1985), cert. denied sub nom. Pan Am. World Airways, Inc., 474 U.S. 948 (1985). 94 757 F.2d 1215, 1215 (11th Cir. 1985), cert. denied, 474 U.S. 948 (1985). 95 Id. at 1219. 96 821 F.2d 1147 (5th Cir. 1987), cert. granted, 490 U.S. 1032 (1989). 97 Id. at 1154. 98 Id. at 1158. 99 Id at 1156. In fact, the court said, as a practical matter, "only an outright dismissal with prejudice could be more outcome determinative." Id 100 Id. at 1157. 101 Id. at 1157. See also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988) (rule of venue is a matter of procedure and federal law will govern in diversity of citizenship cases applying 28 U.S.C. § 1404(a)). Professor Stein asserts that courts have misperceived the Erie implications of court access problems. Stein, supra note 91, at 1938. Stein claims that this is due to a misplaced focus on litigant equality under current Erie doctrine, rather than the correct focus on issues of federalism. Additionally, Stein believes that the "substance-procedure" distinction utilized by current Erie doctrine bypasses the federalism principles underlying Erie by distinguishing choices based solely on categorization. He proposes an

- • T-.4 " ''J ". -" . . " --,<.z. " * '-rt4V*- ..- .. - . .,, - ...... 1992] NOTE-FORUM NON CONVENIENS 663

III MINIMUM CONTACTS AND DUE PROCESS

The doctrine of forum non conveniens has diminished in importance given the modem development of the "minimum contacts" test for personal jurisdiction.10 2 The increased reliance by courts on the "minimum contacts" notion of personal jurisdiction, when taken in concert with modem applications of venue and subject matter jurisdiction, satisfies requirements of fairness and reasonableness embedded in the Due Process Clause of the Fifth Amendment.10 3 A proper personal jurisdiction inquiry should dis- pose of many cases in which the choice of forum is truly inconve- 0 4 nient. Only exceptional cases involving general jurisdiction' necessitate a forum non conveniens inquiry to determine whether a court should dismiss the case. In these cases, personal jurisdiction inquiry into whether the policies underlying state law are undermined by nonconform- ity. id- at 1941. Professor Stein's inquiry begins with a determination of the source of the conflicting federal law. When the federal law is authorized by statute or constitution little deference to state law is required. However, when the doctrine is derived from federal common law, as in forum non conveniens, the conflict becomes more problematic. Id at 1943-45. Stein applies the approach of Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958), to the conflict between federal and state court access doctrines. He chooses Byrd over the Court's later approach in Hanna v. Plumer, 380 U.S. 460 (1965), because he feels that Hanna's assumption of litigant equality as Erie's central objective is misplaced. Id at 1946, 1953-56. Byrd, asserts Stein, recognizes the federalism concerns implicated by Erie. Stein identifies the Byrd Court's technique-looking to the policies behind the conflicting state and federal laws-as akin to the "interest analysis" approach used by many courts today when faced with a conflict of laws question. Although Stein believes the Byrd Court misapplied this approach, he contends that balancing the competing state and federal policies behind court access rules correctly refocuses the inquiry onto issues of federalism. Id at 1954-55, 2006. 102 First formulated in International Shoe v. Washington, 326 U.S. 310 (1945), two years before the Gulf decision, the "minimum contacts" basis for jurisdiction has been refined and expanded in recent years. See generally, Lea Brilmayer, Related Contacts and PersonalJurisdiction, 101 HARv. L. REv. 1444 (1988); Lea Brilmayer & Kathleen Paisley, PersonalJurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 CAL. L. REv. 1 (1986); Kim Dayton, PersonalJurisdiction and the Stream of Commerce, 7 REv. LrrIG. 239 (1988); Harold S. Lewis,Jr., A Brave New Worldfor PersonalJurisdiction:Flexible Tests Under Uniform Standards, 37 VAND. L. REV. 1 (1984); Margaret G. Stewart, A New Litany of PersonalJurisdiction, 60 U. COLO. L. REv. 5 (1989); Gregory Trautman, Com- ment, PersonalJurisdictionin the Post-World-Wide Volkswagen Era-Usinga Market Analysis to Determine the Reach ofJurisdiction, 60 WASH. L. REv. 155 (1984). 103 U.S. CONST. amend. V. 104 There are two kinds of jurisdiction: general and specific. Specific jurisdiction exists when the defendant's actions within the state give rise to the cause of action. Gen- eral jurisdiction, on the other hand, exists when the defendant's contacts with the state suffice to fulfill personal jurisdiction requirements, yet these contacts have no direct connection to the cause of action. See generally, Brilmayer, supra note 102 (discussing the borderline between specific and general jurisdiction); see infra text accompanying notes 147-99 for a discussion of general jurisdiction. 664 CORNELL LAW REVIEW [Vol. 77:650 exists because of substantial contacts with the forum state, yet trial in that state would be so clearly inconvenient that dismissal is warranted.

A. Personal Jurisdiction and InternationalShoe InternationalShoe Co. v. Washington 10 5 changed the standard for personal jurisdiction. Factors creating personal jurisdiction before InternationalShoe included domicile, 106 consent, 107 presence, 08 and attachment of property within the forum state. 10 9 Due to the changing face of the world through the effects of industrialization, these old tests became insufficient. 10 A new test was needed to accommodate the realities of a system in which corporations incorporated in one state, yet did business in many."' The jurisdictional test after InternationalShoe looked much different. The inquiry turned to whether the activities of a corporation within a state would satisfy the demands of the Due Process Clause: Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there. An "estimate of the inconveniences" which would result to the corporationfrom a trial away from its "home" or principal place of business isrelevant in this connection.112 The InternationalShoe Court held that personal jurisdiction could be asserted if the defendant has "certain minimum contacts with it such that the maintenance of the suit does not offend 'traditionalnotions offair play and substantialjustice'." 113 In determining "minimum contacts," the Court attempted to distinguish between corporations with a continuous and systematic

105 326 U.S. 310 (1945). 106 Blackmer v. United States, 284 U.S. 421 (1932). 107 Hess v. Pawloski, 274 U.S. 352 (1927). 108 Pennoyer v. Neff, 95 U.S. 714 (1877). 109 Harris v. Balk, 198 U.S. 215 (1905). 110 This is due in part to the ability of a corporation to have citizenship in one state, yet conduct business in many. These same changes brought about by industrialization also resulted in advances in technology and communications, making it much less likely that any given forum is inconvenient for a defendant. See infra notes 205-10 and accompanying text. 111 See discussion supra note 110. 112 326 U.S. 310, 317 (emphasis added). 113 Id. at 316 (emphasis added). See also World-Wide Volkswagen Corp. v. Wood- son, 444 U.S. 287 (1980) (emphasizing that merely placing merchandise in stream of commerce did not satisfy minimum contacts test; foreseeability that the merchandise would be used in forum state was not sufficient to fulfill traditional notions of fair play and justice). 1992] NOTE-FOR UM NON CONVENIENS 665 presence in the state,' 1 4 and those with merely a casual presence or isolated activity within the state that was not connected to the cause of action.' 15 The determination of "minimum contacts" depends to a large extent upon the "quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure." 16 The Court focused on the benefits and protections a corporation receives from a state as well as the obligations it owes to that state: [T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protec- tion of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. "17 By focusing on "minimum contacts," International Shoe provided flexibility to the doctrine of personal jurisdiction, while simultaneously assuring that individual defendants would not be subject to arbitrary personal jurisdiction that did not comport with "fair play and substantial justice."' "I This increased flexibility resulted from emphasis not on the mere "presence"" 19 or "implied consent"1 20 of a corporation within any given state, but rather on the degree to which that corporation benefited from the forum state.

B. Modern Minimum Contacts Doctrine and "Reasonableness" In 1980, the Supreme Court refined the "minimum contacts" inquiry to explicitly include a notion of "reasonableness."' 12' In World-Wide Volkswagen Corp. v. Woodson,' 22 the Supreme Court held that a New York car dealer was not subject to personal jurisdiction in Oklahoma for injuries stemming from a car accident when the only contact it had with that state was the foreseeable use of its product on the roads of Oklahoma.' 23 The Court stated that the foreseeability that a car would travel through other states was not sufficient to extend the reach of personal jurisdiction. 124 Instead,

114 326 U.S. at 317. 115 Id. 116 Id. at 319. 117 Id. 118 Id. at316. 119 See supra note 108. 120 See supra note 107. 121 World-Wide Volkswagen Corp. v.Woodson, 444 U.S. 286 (1980). 122 Id. 123 Id. at 295-96. 124 Id. 666 CORNELL LA W REVIEW [Vol. 77:650

the corporation must "purposefully avail[ ] itself of the privilege of conducting activities within the forum State." 125 The unilateral action of the consumer-driving the car through Oklahoma-was not enough to subject the seller to personal jurisdiction, absent some purposeful action on the part of the seller. 126 The Court noted, however, that if the distributor of a product made efforts to serve markets in other states, directly or indirectly, it would not be "unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury." 127 World-Wide Volkswagen raised the possibility that a corporation purposefully inserting a product into the stream of commerce might satisfy the "reasonableness" component of the minimum contacts inquiry and thereby subject itself to personal jurisdiction in states it directly or indirectly targeted.' 28 The Supreme Court further addressed this issue in Asahi Metal Industry Co. v. Superior Court.'29 In Asahi, the Court'held that in order to satisfy due process, the " 'substantial connection' between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward theforum State."130 Fur- ther, the Court found that placing a product in the stream of commerce, without more, does not satisfy this test. 13 1 Activities which indicate a purpose to serve the market of a state include advertising in the state, marketing through a distributor, and providing chan- nels for regular customer advice. 132 The Asahi Court described the factors involved in the determination of the "reasonableness of the exercise of jurisdiction"' 133 in any given case: A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies. ' 134 The "reasonableness" test described by the Asahi Court 35 and the modern International Shoe "minimum contacts" doctrine dupli- cate the forum non conveniens inquiry to a large degree and take

125 Id. at 297 (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). 126 World-Wide Volkswagen, 444 U.S. at 298. 127 Id. at 297. 128 Id, 129 480 U.S. 102 (1987). 130 Id. at 112 (citations omitted). 131 Id. 132 Id. 133 Id. at 113. 134 Id. (quoting World-Wide Volkswagen, 444 U.S. at 292.). 135 See supra note 129. 19921 NOTE-FORUM NON CONVENIENS 667 the convenience of the defendant into account.136 Hence, it is possible that courts are inquiring into convenience twice. Some commentators have questioned the usefulness of the forum non conveniens doctrine in light of this expanded, though refined, test of personal jurisdiction, which considers inconvenience to the parties as an element of the due process analysis. 13 7 Professor Stewart finds it anomalous that when the contacts between the defendant and the forum suffice for personal jurisdiction, courts may nonetheless dismiss on forum non conveniens grounds. 13 8 She asserts that this is especially true when the courts do not explain why the same collection of contacts will suffice for dismissal based on forum non conveniens, but not personal jurisdiction.13 9 Stewart argues that the test for personal jurisdiction inherently accounts for the "private" factors of Gulf 140 by relating the burden imposed on the litigants to the plaintiff's choice of forum.' 4' When complex issues of personal jurisdiction exist, 142 courts can often avoid the constitutional inquiry mandated by the "minimum contacts" standard, and instead apply a highly discretionary forum non conveniens analysis. 143 However, if courts utilized the

136 326 U.S. at 317. 137 See Margaret G. Stewart, Forum Non Conveniens: A Doctrine in Search of a Role, 74 CAL. L. REV. 1259, 1324 (1986) ([P]otential abuses by plaintiffs in selecting the forum "are best avoided, for the most part, through rules of jurisdiction and venue." Id at 196.); see also Peter G. McAllen, Deference to the Plaintiffin Forum Non Conveniens, 13 So. IiLL. LJ. 191, 195-97 (1989) (the forum non conveniens inquiry is used increasingly as an "escape device" to solve defects created by rules of venue and jurisdiction, but the potential for abuse through the broad discretion given to the trial court is best avoided through the rules of jurisdiction); David W. Robertson, Forum Non Conveniens in America and England- "A Rather FantasticFiction", 103 L.Q. REv. 398, 424 (1987) (looking at overlap between forum non conveniens doctrine and jurisdictional issues: "Personal jurisdiction is admittedly an amorphous inquiry, but forum non conveniens is even more so"); Allan R. Stein, Forum Non Conveniens and the Redundancy of the Court Access Doctrine, 133 U. PA. L. REV. 781, 793-95 (1985) (asserting that the distinctions between the jurisdictional inquiries and forum non conveniens are not sufficient to accord different treatment, especially since forum non conveniens has such a low standard of review). 138 Stewart, supra note 137, at 1262-63. 139 Id at at 1262-63. 140 See supra notes 27-28 and accompanying text. 141 Stewart, supra note 137, at 1264. 142 Complex issues of personal jurisdiction arise when the activity within the forum state is not related to the claim or when jurisdiction is secured by service within the forum state rather than by a strict minimum contacts analysis. Stewart argues, however, that these should be insufficient to sustain jurisdiction under the "minimum contacts" test. They are merely evidence of "some contact." Id. at 1270-71. But see Burnham v. Super. Ct. of Cal., 110 S. Ct. 2105 (1990) (service of process on nonresident within forum state is sufficient to establish personal jurisdiction). See also infra text accompanying notes 147-49 for a discussion of general jurisdiction. 143 Stewart, supra note 137, at 1271. An example of this is the Gu/f case, which Pro- fessor Stewart argues was decided on the wrong grounds. She contends that the case should have been dismissed due to lack of personal jurisdiction, not forum non conveniens. Id. at 1288. 668 CORNELL LA W REVIEW [Vol. 77:650

proper jurisdictional analysis, forum non conveniens would no longer be as significant to the assurance of a convenient forum. Convenience is accounted for in the jurisdictional inquiry, and a careful jurisdictional inquiry would guarantee due process to the litigants by limiting the court's discretionary power.144 By allowing a district court to dismiss on forum non conveniens grounds, appellate review is limited to a broad abuse of discretion standard, 145 and "the role of due process itself as a constitutional limit on power, is 146 denigrated and obscured."'

C. General Jurisdiction and Forum Non Conveniens Even though the factors for determining personal jurisdiction and forum non conveniens are similar, in some cases sufficient contacts establish personal jurisdiction, but litigation of the case within a United States -forum would be clearly inconvenient. These cases demonstrate the need for modifications to the doctrine of forum non conveniens that cure its shortcomings yet, at the same time, il- lustrate the need to dismiss cases that are truly in an inconvenient forum. Cases in which minimum contacts exist to assert personal jurisdiction, but the cause of action does not arise from the defendant's actions within the forum state, are termed cases of "general jurisdiction."' 47 Cases of specific jurisdiction, in which the cause of action

144 lId at 1279. 145 See infra notes 246-58 and accompanying text. 146 Stewart, supra note 137, at 1279. Other commentators agree with Professor Stewart that courts may be using forum non conveniens to evade tougher questions of personal jurisdiction. See, e.g., McAllen, supra note 137, at 196, 258 (urging that potential abuses in the plaintiff's choice of forum are best avoided through legislatively created rules ofjurisdiction and venue, which carry with them stricter standards of review, rather than a judicially created doctrine that courts may use as an "escape device." He acknowledges that rules of venue will not help when the alternate forum is a foreign country but argues that rules of personal jurisdiction can, and do, address the problem.); Robertson, supra note 137, at 424 (warning British courts not to follow the Ameri- can trend of forum non conveniens, claiming that American courts use the "vague and amorphous" doctrine of forum non conveniens to accommodate shortcomings in jurisdictional inquiries. He contends that, given the discretion left to the trial court under the forum non conveniens doctrine, judges will not work to apply sensible jurisdictional rules.); Stein, supra note 137, at 795 (echoing Professor Robertson's fear that, by resolv- ingjurisdictional issues in an informal forum non conveniens context, courts are actually retarding the development of more precise jurisdictional rules). 147 See generally JACK H. FRIENDENTHAL ET AL., CIVIL PROCEDURE § 3.10; Brilmayer, supra note 102. See also, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984) (recognizing distinction between "general" and "specific" jurisdiction); Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) (holding that the Four- teenth Amendment permits, but does not require, general jurisdiction by a state over a foreign corporation carrying out "a continuous and systematic, but limited, part of its general business" in that state. Id. at 438.). 1992] NOTE-FOR UM NON CONVENIENS 669 does arise from the defendant's contacts with the forum state, 48 present less of a problem for forum non conveniens because the jurisdictional inquiry, especially the "reasonableness" component, will sufficiently examine the convenience to the defendant and the forum state's connection to the litigation.' 49 However, when personal jurisdiction is asserted due to a corporate defendant's continuous and systematic contacts with a state, which are not connected to the cause of action, there is the potential for inconvenience. In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India'50 is one case in which personal jurisdiction existed, yet a forum non conveniens dismissal was appropriate. This case involved 145 consoli- dated actions against Union Carbide for injuries that followed a leak of methyl isocyanate from a plant in Bhopal, India.' 5' Union Car- bide Corporation, the parent company of Union Carbide-India Lim- ited, was a New York corporation, and personal jurisdiction was easily established in the Southern District of New York.1 52 The court, however, granted conditional dismissal based on forum non conveniens.15 s The court cited many factors leading to dismissal. First, the victim's medical records and the plant's records regarding management, safety, and personnel were located in India. More- 5 4 over, some of these records were written in the Hindi language.1 Transportation costs for all of the witnesses would also have been prohibitively expensive. 55 In addition, the court considered public factors, including crowded court dockets and the Indian govern- 156 ment's interest in regulating a dangerous industry. The Bhopal case demonstrates that personal jurisdiction analysis does not always filter out an inconvenient lawsuit, especially when general jurisdiction is asserted over a corporate defendant. 57 Forum non conveniens here serves a useful purpose by effectively

148 See generally, FrEDENTHAL ElT AL., supra note 147, at § 3.10. 149 See supra text accompanying notes 136-46. 150 634 F. Supp. 842 (S.D.N.Y. 1986), aff'd in part, modified in part, 809 F.2d 195 (2d Cir. 1987), cert. denied, 484 U.S. 871 (1987). 151 Id. at 844. 152 Id 153 Id. at 867. Trial courts increasingly grant forum non conveniens dismissals conditioned on the defendant's agreement to various stipulations dealing with such issues as discovery, waiver of statutes of limitations, and other procedural matters that may prejudice a plaintiff in the foreign forum. However, even these conditional dismissals do not totally alleviate the outcome determinative effect of forum non conveniens. See infra notes 164-71 and accompanying text. 154 634 F. Supp. at 853-58. 155 Id. at 859-60. 156 Id. at 862-66. 157 A corporation will always be under the personal jurisdiction of its state of incor- poration, regardless of the inconvenience that a particular suit may pose. By incorporat- ing within a state, a corporation becomes a citizen of that state, and takes on both the benefits and burdens resulting from that citizenship. One of these burdens is amenabil- 670 CORNELL LAW REVIEW [Vol. 77:650 accomplishing the transfer of a meritorious lawsuit to an alternative foreign forum.1 58 However, the doctrine of forum non conveniens must be carefully tailored so that this type of case is detected, while other cases without a true showing of inconvenience are not dis- 159 missed from the courts of this country.

IV THE EFFECT OF FORUM NON CONVENIENS ON THE CONDUCT OF MULTINATIONAL CORPORATIONS

With the enactment of section 1404(a) transfers, 160 the forum non conveniens doctrine in federal courts is effectively limited to suits brought by foreign plaintiffs against United States-based MNCs.' 6' Although this type of litigation varies somewhat, it generally involves an individual's personal injury claim for an accident in 62 a foreign country due to a defendant MNC's product or service.' A defendant can prevent progression of a case at an early stage through a forum non conveniens dismissal. Due to the outcome determinative effect of such dismissal, it is unlikely that the plaintiff 163 will bring the case in the supposedly more convenient forum. Thus, forum non conveniens may unjustifiably protect MNCs from any liability. ity to personal jurisdiction for suits instituted within the state. See supra note 110. See also text accompanying notes 147-49 for a discussion of general jurisdiction. 158 The case was in fact dismissed, but by making the dismissal conditional, the court effected a transfer. 159 The standard proposed by this Note is discussed infra text accompanying notes 226-35. 160 See supra notes 42-53 and accompanying text. 161 See supra note 5. 162 See, e.g., Stewart v. Dow Chem. Co., 865 F.2d 103 (6th Cir. 1989) (Canadian plaintiffs file products liability suit against Michigan manufacturer of herbicide); Carlen- stolpe v. Merck & Co., 819 F.2d 33 (2d Cir. 1987) (Swedish plaintiff sues New Jersey producer of hepatitis vaccine for injuries); De Melo v. Lederle Lab., 801 F.2d 1058 (8th Cir. 1986) (Brazilian citizen sues New York manufacturer of drug based on products liability theory); DeShane v. Deere & Co., 726 F.2d 443 (8th Cir.) (Canadian plaintiffs sue corporation doing business in Iowa for industrial injury), aff'd, 747 F.2d 1194 (8th Cir. 1984); Friends For All Children, Inc. v. Lockheed Aircraft Corp., 717 F.2d 602 (D.C. Cir. 1983) (suit on behalf of Vietnamese children injured or killed when American manufactured plane crashed); Dahl v. United Technologies Corp., 632 F.2d 1027 (3d Cir. 1980) (Norwegian citizens sue American helicopter manufacturer in wrongful death suit after helicopter crashed); Ball v. Deere & Co., 684 F. Supp. 1455 (C.D. Ill. 1988) (Canadian citizens sue Illinois manufacturer of combine for injuries); Rubenstein v. Piper Aircraft Corp., 587 F. Supp. 460 (S.D. Fla. 1984) (West German citizens bring wrongful death action against American plane manufacturer); Grimandi v. Beech Air- craft Corp., 512 F. Supp. 764 (D. Kan. 1981) (French citizens sue American plane manufacturer for injuries sustained in plane crash). 163 The outcome determinative effect of forum non conveniens dismissals is discussed infra part IV.A. 1992] NOTE-FORUM NON CONVENIENS

A. The Outcome Determinative Effect of Forum Non Conveniens Dismissals If the doctrine of forum non conveniens truly "resists formali- zation and looks to the realities that make for doing justice,"' 164 courts should consider the realities facing foreign plaintiffs suing MNCs. For example, one reality is the likelihood that either legal or practical barriers will prevent foreign plaintiffs from recovery in their home country. 165 Such barriers may effectively quash a potentially valid claim by aggrieved plaintiffs, while MNCs shield them- selves from responsibility for their actions. A foreign plaintiff may be unable to bring the suit in the alternative forum for a variety of reasons. Plaintiffs may lose their United States attorney, either because of the alternative forum's specific professional requirements or because the attorney cannot afford the time and expense of travelling to a foreign country for trial.166 Even if plaintiffs can find an attorney to represent them in the alternative forum, many countries do not allow fees payable on a contingency basis. 167 In addition, many plaintiffs cannot afford attorneys on retainer, especially since some countries cap tort 68 awards, which further limits plaintiffs' recovery. Moreover, differences in procedural law may preclude refiling the suit. The foreign country's statute of limitations may have ex- pired during the forum non conveniens inquiry in the United States. In addition, a foreign forum may not provide discovery rules as liberal as those in the United States. Although many judges now make forum non conveniens dismissals conditional on the defendant waiv- ing procedural prohibitions, such as the relevant statute of limitations, jurisdiction, or restrictive discovery rules of the foreign country,1 69 this is generally not enough to ensure that the plaintiffs will obtain justice in their home countries. Political pressures may

164 Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 528 (1947) (companion case to Gulf Oil Co. v. Gilbert, 330 U.S. 501 (1947)). 165 See generally Robertson, supra note 137, at 418-19. 166 Id. at 418. 167 See, e.g., DeShane v. Deere & Co., 726 F.2d 443, 444 (8th Cir. 1984), aff'd, 747 F.2d 1194 (8th Cir. 1984) (Ontario allowed no contingency fee, and plaintiff could not afford a retainer). 168 See Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 683 n.6 (Tex. 1990), cert.. denied, 111 S. Ct. 671 (1991) (Doggett, J., concurring) (noting that plaintiffs maximum recovery for sterilization capped at $1080 in Costa Rica). 169 See, e.g., Fitzgerald v. Texaco, Inc., 521 F.2d 448, 452 (2d Cir. 1975) (dismissal conditioned on defendant submitting to personal jurisdiction in alternate forum), cert. denied, 423 U.S. 1052 (1976); Ball v. Deere & Co., 684 F. Supp. 1455, 1460 (C.D. Ill. 1988) (dismissal conditioned on defendant's waiver of Canadian statute of limitations); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 634 F. Supp. 842, 867 (S.D.N.Y. 1986) (dismissal conditioned on defendant's consent to jurisdiction of India, waiver of statute of limitations, agreement to satisfy any judgment entered, and consent 672 CORNELL LAW REVIEW [Vol. 77:650 affect the plaintiffs and the court system, especially if the defendant MNC exerts great economic power in the country. 170 Finally, plaintiffs simply may not want to endure the costs and inconvenience of starting a new trial. As a result of these barriers, the forum non conveniens dismissal, even when conditionally granted, really represents the end of the line for many foreign plaintiffs. Professor Robertson conducted an informal mail survey of 180 transnational cases dismissed from United States courts for forum non conveniens. Of the returned re- sponses for eighty-five cases, eighteen cases were not pursued further in the foreign forum, twenty-two settled for less than half the estimated value, and in twelve, the United States attorneys had lost track of the outcome. Most importantly, none of the reported cases proceeded to a courtroom victory in the foreign forum. 17' MNCs work hard to obtain a forum non conveniens dismissal from United States courts because this often represents the last they will see of the litigation. B. United States' Interests in Deterring Multinationals From Harmful Conduct MNCs may effectively evade United States regulatory law by obtaining a forum non conveniens dismissal of claims by foreign plaintiffs. MNCs may distribute goods banned or restricted from the United States to foreign markets. As a result, foreign consumers may frequently receive products that are banned for domestic use in the United States. 172 For example, a United States children's sleepwear manufacturer failed to comply with domestic regulations prohibiting the use of carcinogenic chemicals as a flame retard- ant. 173 The company shipped the banned sleepwear to countries without heavy regulations, thus exposing many foreign children to potential danger. 74 A congressional subcommittee examining the export of such hazardous materials concluded that the United States should not condone the export of regulated products it knows to be 75 harmful to consumers or the environment. to use of United States Federal Rules of Civil Procedure pertaining to discovery), aff'd, 809 F.2d 195 (2d Cir.), cert. denied, 484 U.S. 871 (1987). 170 See generally Matthew Lippman, TransnationalCorporations and Repressive Regimes: The Ethical Dilemma, 15 CAL. W. INT'L LJ. 542 (1985). 171 See Robertson, supra note 137, at 418-19. 172 See generally Lairold M. Street, Comment, U.S. Exports Bannedfor Domestic Use, But Exported to Third World Countries, 6 INr'L TRADE L.J. 95 (1981). 173 Id at 97. 174 Id. 175 Id. at 102-03 (citing U.S. Export of Banned Products: Hearings Before the Commerce, Consumer and Monetary Affairs Subcomm. of the House Comm. on Government Operations, 95th Cong., 2d Sess. 36 (1978)). Further examples include: dangerous pesticides sent to 1992] NOTE-FORUM NON CONVENIENS 673

By authorizing forum non conveniens dismissals in a broad spectrum of cases, United States courts are tacitly condoning the potentially hazardous activities of MNCs by allowing injured plaintiffs' claims to go unanswered.1 76 Some judges and commentators feel that the United States has a strong interest in assuring the safe regulation of American industry, even when the impact is felt in a 177 foreign country. MNCs may manipulate the structure of the company in order to reap the most benefits from forum non conveniens.178 Their size and organizational structure allows them to conduct business in a large number of states and countries, and to wield greater economic power than some nations. 179 This economic power, coupled with the company presence dispersed throughout many countries, cre- ates corporate layers. Through the existence of these corporate layers, a company can assert that relevant witnesses, documents and other evidence are more easily procured through trial at some alternate forum. A stricter standard of forum non conveniens would serve United States' interests by limiting the MNCs' evasion of responsibility for their actions. However, the Supreme Court has rejected this argument. In dicta to Piper, the Coiurt states that the "incremen- tal deterrence" which would be gained by subjecting the MNC to a United States court would be "insignificant," and would not justify the commitment of judicial time and resources.18 0

Egypt, where farmers and cattle died; synthetic male hormones with irreversible side effects shipped to Brazil for use on children to combat weight loss; drug causing fatal blood disease shipped for use in Dominican Republic. See Street supra note 172, at 96- 97. 176 See supra part IV.A. for a discussion of the outcome determinative effect of forum non conveniens dismissals. 177 See, e.g., Carlenstolpe v. Merck & Co., 819 F.2d 33, 35 (2d Cir. 1987) (naming United States' interest in issues concerning possible tortious conduct in manufacturing of defective exported product); but see EEOC v. Arabian Am. Oil Co., 111 S. Ct. 1227 (1991) (prohibiting extraterritorial application of federal statute in absence of explicit evidence of legislative intent); Dahl v. United Technologies Corp., 632 F.2d 1027, 1033 (3d Cir. 1980) (national interest in regulation of aircraft industry not enough to tip scales to retain jurisdiction). See also Lippman, supra note 170 (discussing the increasing role of MNCs in the political and economic spheres of the developing world); Tom Kuhn, Note, Forum Non Conveniens: Discretionand the Abuse of Democratic Rights, 1985 DET. C.L. REv. 1169 (discussing deleterious effects of forum non conveniens dismissals on nonresidents of the United States); Street, supra note 172 (discussing MNCs' hazardous exports to developing countries). 178 Kuhn, supra note 177, at 117. 179 See Lippman, supra note 170, at 544 (asserting that the annual sales of General Motors are greater in value than the entire annual economic activity of Belgium or Switzerland). 180 Piper Aircraft Co. v. Reyfio, 454 U.S. 235, 260-61 (1981). 674 CORNELL I_.W REVIEW [Vol. 77:650

Additionally, the Supreme Court has held that federal statutes do not apply extraterritorially in the absence of clear congressional intent to the contrary.18 ' In EEOC v. ArabianAmerican Oil Co.,182 the Court determined that Title VII does not apply extraterritorially to regulate the foreign conduct of United States employers vis ' vis United States citizen employees.' 83 Chief Justice Rehnquist explained this decision limiting federal law to domestic application: "It serves to protect against unintended clashes between our laws and those of other nations which could result in international dis- cord." 8 4 Though EEOC did not specifically answer the question of the extraterritorial applicability of state statutes, federal court application of forum non conveniens produces the same effect by allowing dismissal of cases in diversity of citizenship actions when the state court would retain jurisdiction.18 5 Some courts and commentators have noted a "paternalistic" at- titude on the part of those wishing to hold MNCs liable in the United States for harms caused abroad. 86 In so arguing, proponents of the current application of forum non conveniens contend that foreign countries can adequately protect their citizens, and that forcing these MNCs to be liable in a United States forum is, in effect, "social jingoism." 187 Proponents of holding MNCs liable in United States courts for injuries to foreign plaintiffs counter the paternalism argument by 8 looking at the realities of foreign legal and economic systems. The governments of lesser developed countries compete with one another for the business of MNCs to aid economic development.' 89 Simultaneously, MNCs search for the countries which offer them the

181 See EEOC v. Arabian Am.. Oil Co., 11l S. Ct. 1227 (1991). 182 Id. 183 Id. at 1229. 184 Id. at 1230. 185 See supra notes 91-101 and accompanying text. 186 See, e.g., Allin C. Seward III, After BhopaL" Implicationsfor Parent Company Liability, 21 INT'L LAw. 695, 705-06 (1987) (Note that Mr. Seward is Assistant General Counsel for Upjohn Corp.). See also DeMateos v. Texaco, Inc., 562 F.2d 895, 902 (3d Cir. 1977) (exporting liberal U.S. tort policies is a form of "social jingoism"), cert. denied, 435 U.S. 904 (1978); In re Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842, 867 (S.D.N.Y. 1986) (retaining suit in U.S. forum would be imperialism, when an established sovereign imposes standards and values on a developing nation), aft'd, 809 F.2d 195 (2d Cir.), cert. denied, 484 U.S. 871 (1987). 187 DeMateos, 562 F.2d at 902. 188 See, e.g., Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissal Requested by U.S. Multinational Corporations-TheBhopal Case, 22 GEo. WASH. J. INT'L L. & EcoN. 215 (1989); Joshua N. Rose, Note, Forum Non Conveniens and Multina- tional Corporations: A Government Interest Approach, 11 N.C. J. INT'L L. & CoM. REG. 699 (1986). 189 See Lippman, supra note 170, at 545. 19921 NOTE-FORUM NON CONVENIENS 675 lowest costs and highest returns.190 This search may include a search for a lower standard of regulation, as this carries with it a lower possibility of liability. Furthermore, many lesser developed countries do not have the sophisticated tort law system present in the United States.19 1 Potential liability is often capped at an amount which insulates MNCs from excessive judgments and deters attorneys from taking cases on a contingency basis. Thus, competition between governments for the business of MNCs can result in a "race to the bottom," and the government that offers the lowest potential tort and environmental liability wins.' 92 In addition, countries with stricter regulations often do not have the trained personnel to implement them, further freeing MNCs from liability.' 93 The possibility that MNC defendants will be subject to liability in United States courts for injuries that result from their activities in foreign countries will aid in deterring irresponsible conduct. In addition, MNCs' harmful activities in foreign countries may make the United States itself appear involved in potentially harmful conduct. The largest United States-based MNCs earn an average of forty percent of their net profits outside the United States. 194 These profits in turn flow back to the United States and become part of the gross national product. Although the United States has an interest in the growth of its gross national product, it also has an interest in the integrity of its business and in ensuring that its gross national product is not earned at the expense of injured foreign plaintiffs. 195 The United States prides itself on being a nation committed to the belief that all persons have certain inalienable rights, 196 and as a nation, the United States condemns human rights violations by foreign governments.' 97 If activities of United States MNCs are im- pairing the life or liberty of foreign citizens, then the United States has a strong interest in assuring that these corporations are responsible for their violations.

190 Idt 191 Id 192 Id 193 See Street, supra note 172, at 99. 194 See Lippman, supra note 170, at 545. 195 As noted earlier, courts do not always agree with this argument. See supra notes 180-87 and accompanying text. 196 THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). 197 See, e.g., Pamela Constable, U.S. Senate Mulls Stiff Trade Terms for China, BOSTON GLOBE, July 23, 1991, at 3 (discussing condemnation of China for human rights abuses); House Condemns Cuba on Human Rights, REtrrERS, Feb. 28, 1991, available in LEXIS, Nexis Library, Current File (reporting House of Representatives resolution condemning human rights violations by Cuban government); Mark Schoofs, Miners Take Over Bucharest, S.F. CHRON., June 5, 1990, at Al (noting President Bush's condemnation of human rights violations sanctioned by Romanian government). 676 CORNELL LA W REVIEW [Vol. 77:650

C. Docket-Clearing Is Not Accomplished The Gulf and Piper Courts made clear that the forum non conveniens inquiry includes an examination of the litigation's effect on congested court dockets. 198 Courts applying the doctrine in modem times have placed heavy emphasis on this one factor. 199 In so doing, judges have helped realize the fears of the Gulf dissent. In Gulf, Justice Black stated that forum non conveniens inquiries "will . ..clutter the very threshold of federal courts with a preliminary trial of fact concerning the relative convenience of forums. '200 Modem forum non conveniens inquiries require a preliminary hearing of the relevant private and public factors, and these very factors necessarily concern the merits of the underlying cause of action.20' Extensive discovery may be necessary to adjudicate the question of convenience properly, and both sides are likely to ex- pend private and public resources to prevail on this issue, because it is generally recognized as outcome determinative. 20 2 Thus, this fact weakens the "docket-clearing" administrative purpose advocated by some proponents of forum non conveniens. The dockets will not be cleared, but instead will be clutteredwith motions to determine applicability of forum non conveniens. In most cases, the length of a trial on the merits will greatly exceed the forum non conveniens inquiry (e.g., the Bhopal case).20 3 However, in many cases, when extensive discovery has tken place, or a court has considered the merits of the cause of action in some detail the imposition on the resources and time of the court has already taken place to a large extent.204 The court should, therefore, be more willing to let the litigation proceed and not grant a forum non conveniens dismissal.

198 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). Docket clearing has been found to be an inappropriate con- sideration for denial of due process in other contexts. See, e.g., Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 344 (1976) (heavy docket of district court not a proper factor in determination of whether to remand a removed case to state court); United States v. Reliable Transfer Co., 421 U.S. 397, 408 (1975) (court congestion does not justify a legal rule that produces unjust results). 199 See, e.g., Rubenstein v. Piper Aircraft Corp., 587 F. Supp. 460, 461 (S.D. Fla. 1984) (foreign plaintiffs must not be encouraged to take advantage of United States courts). 200 330 U.S. at 516 (Black, J., dissenting). 201 See Carlenstolpe v. Merck & Co., 819 F.2d 33, 36 (2d Cir. 1987) (forum non conveniens inquiry is not separate from the merits of the action itself and determination of forum non conveniens requires an examination of the alleged culpable conduct). 202 See supra part IV.A. 203 See supra notes 150-59 and accompanying text. 204 The length of trial on the merits will, of course, always exceed the forum non conveniens inquiry. 19921 NOTE-FORUM NON CONVENIENS 677

D. The Modem Context of Convenience A further argument in favor of stricter standards for forum non conveniens is grounded in the changed meaning of the word "convenience" subsequent to the Gulf decision.205 Many advances in technology and transportation have taken place since 1947. Judge Oakes of the Second Circuit calls for a re-examination of the entire doctrine of forum non conveniens in light of these advances. 20 6 The technological revolution makes it less likely that any individual defendant will face inconvenience, especially when the purported inconvenience takes place in the defendant's home country. 20 7 This argument is stronger when the defendants are MNCs, because they have the resources to access this very technology. The modem growth of MNCs is due, at least in part, to the-advances made in transportation and communication technologies. 20 8 These very advances make it less likely that a trial in any given forum will be inconvenient for the MNC defendant. It seems anomalous that these advances in technology have arisen concurrently with a relaxation in the standards for a determination of forum non conveniens. 20 9 A modification of the standards for forum non conveniens will correct this inconsistency, and at the same time pre- serve the usefulness of the doctrine by permitting dismissal of those cases when it is truly justified.210

205 See, e.g., Calavo Growers of Cal. v. Belgium, 632 F.2d 963, 969 (2d Cir. 1980) (Newman, J., concurring) (arguing that jet travel and satellite communications have sig- nificantly altered the meaning of "non conveniens"), cert. denied, 449 U.S. 1084 (1981). See also Fitzgerald v. Texaco, Inc., 521 F.2d 448, 456 (2d Cir. 1975) (Oakes, J., dissenting). 206 Fitzgerald, 521 F.2d at 456 (Oakes, J., dissenting). Judge Oakes also calls for re- examination of the doctrine in light of the "dispersion of corporate authority.., by the use of multinational subsidiaries to conduct international business." Id. at 456 n.3. 207 See Kathi L. Hartmen, Note, Forum Non Conveniens andForeign Plaintiffs in the Federal Courts, 69 GEO. LJ. 1257, 1259 (1981) (arguing that it is not readily apparent why a United States defendant would be inconvenienced by a suit brought on "home turf"). 208 At least one Note has paralleled the development of forum non conveniens to the post-World War II growth of MNCs. See Kuhn, supra note 177, at 1171. 209 See infra notes 211-25 and accompanying text. 210 See infra notes 226-35 and accompanying text. 678 CORNELL LA W REVIEW [Vol. 77:650

V GRANTING AND REVIEWING FORUM NON CONVENIENS: PROPOSALS FOR CHANGE A. The Standard for Granting a Forum Non Conveniens Dismissal 1. The Present Standard: Most Convenient Forum Although forum non conveniens originated as a check on an attempted abuse of the justice system, 21 1 its modem application looks merely to the possibility of a more convenient forum. Professor Robertson has named this the "abuse-of-process" and "most- suitable-forum" dichotomy. 21 2 In Gulf, the Supreme Court held that the plaintiff's choice of forum should be disturbed only on the rare occasion when the balance of factors strongly weighs in favor of the defendant (an abuse of process standard). 213 This preference for a plaintiff's choice of forum only eliminates those cases that truly harass a defendant or impose on the power of a court. Professor Robertson claims that the shift from the abuse-of- process standard occurred in the wake of the enactment of the section 1404(a) transfer, 214 a doctrine which rightfully carries with it a lower standard of application.2 1 5 In Norwood v. Kirkpatrick,21 6 the Supreme Court emphasized that a section 1404(a) transfer requires a lesser showing of inconvenience than a dismissal based on forum non conveniens. 21 7 This is due to the difference in remedies: a section 1404(a) transfer merely results in the transfer of a case, whereas a forum non conveniens determination results in dismissal.2 1 8 Notwithstanding the Supreme Court's decision in Norwood, Profes- sor Robertson contends that courts began assimilating section 1404(a) transfer standards into forum non conveniens inquiries. 219

211 See supra notes 20-24 and accompanying text. 212 Robertson, supra note 137, at 399. See also Robertson & Speck, supra note 71, at 940. 213 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). However, the Gulf Court failed to adequately catalogue those precise factors that were most important. See supra note 37 and accompanying text. 214 See supra notes 42-53 and accompanying text. 215 This lower standard is due to the effect of the § 1404(a) transfer, which merely transfers the case to another district court, while a forum non conveniens determination results in outright dismissal. See supra notes 48-53 and accompanying text. 216 349 U.S. 29 (1955). 217 Id. at 32. 218 Id. 219 Robertson, supra note 137, at 404. See, e.g., In re Disaster at Riyadh Airport, Saudi Arabia, 540 F. Supp. 1141, 1154 n.35 (D.D.C. 1982) (forum non conveniens inquiry is not a search for a problem-free forum, but rather the most convenient forum); Paper Operations Consultants Int'l, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 671 (9th Cir. 1975) (court should not retain jurisdiction unless controversy so connected to forum as to warrant forum's expenditure of time and resources). Cf Piper Aircraft Co. v. Reyno, 1992] NOTE-FORUM NON CONVENIENS 679

Thus, forum non conveniens is no longer an inquiry into whether a particular defendant suffers true inconvenience, but rather whether 220 a more "suitable" forum exists. Others have also expressed concern with the changing standard for imposition of forum non convemens. Professor Stein comments that the application of the doctrine has not been limited to assuring convenience for the litigants.22 ' Instead, courts often use the doctrine as a method of docket-clearing.2 22 Defendants often argue for the use of the most-suitable-forum standard for forum non conveniens, claiming that lenient courts will become the "dumping ground for the nation's homeless tort litigation." 223 This may strengthen a court's impetus for dismissal. Similarly, in his dissent to Gulf, Justice Black warned of the danger the Court's vague description of factors and standards for forum non conveniens would engender: [A]ny individual or corporate defendant who does part of his business in states other than the one in which he is sued will almost invariably be put to some inconvenience to defend himself. It will be a poorly represented multistate defendant who cannot produce substantial evidence and good reasons fitting the rule now adopted by this Court tending to establish that the forum of the 24 action against him is most inconvenient. 2 Justice Black's fears were prophetic in light of the subsequent shift courts have taken to a more lenient standard for forum non conveniens dismissals.2 25 Today it is more likely that any given MNC

454 U.S. 235, 256 (1981) (central purpose of the forum non conveniens inquiry is to assure trial is convenient; therefore foreign plaintiff entitled to less deference). 220 Robertson, supra note 137, at 404-05. 221 Stein, supra note 137, at 784. See also PeterJ. Kalis & Thomas M. Reiter, Forum Non Conveniens: A Case Management Tool for Comprehensive EnvironmentalInsurance Coverage Actions?, 92 W. VA. L. REv. 392, 394 (1990) (noting the "metamorphosis of forum non conveniens from a rather crude and cumbersome shield forged to protect harassed defendants into a modern offensive weapon programmed to search and destroy 'mega' cases through defendant-activated and judicially imposed fission."). 222 This interest does not generally outweigh due process. See supra note 198. Moreover, docket-clearing is not accomplished; courts are still left with hearings to determine the forum non conveniens inquiry. See supra notes 198-202 and accompanying text. The Gulf Court named prevention of congested courts as simply one of the factors that courts could examine in the forum non conveniens inquiry. Gulf Oil Corp. v. Gil- bert, 330 U.S. 501, 508-09 (1947). 223 Robertson & Speck, supra note 71, at 952 (quoting Shewbrooks v. A. C. & S,529 So. 2d 557, 574 (Miss. 1988)). 224 330 U.S. at 515-16 (Black, J., dissenting). Justice Black also noted the effect the Court's standard will have on court dockets: "The Court's new rule will ... clutter the very threshold of the federal courts with a preliminary trial of fact concerning the relative convenience of forums." Id. at 516. See supra part IV.D. 225 In Piper, the Court commented that it was precisely the flexibility possible in a forum non conveniens determination which makes the doctrine so valuable. Piper Air- craft Co. v. Reyno, 454 U.S. 235, 249-50 (1981). 680 CORNELL LI W REVIEW [Vol. 77:650 defendant will be able to invoke forum non conveniens and avoid a trial on the merits.

2. The Proposed New Standardfor Granting Forum Non Conveniens As MNCs sued in the United States increasingly attempt to invoke the forum non conveniens doctrine to dismiss lawsuits, a stricter and clearer standard of forum non conveniens is necessary. The argument for a stricter standard is even more compelling in light of the Supreme Court's language in Norwood v. Kirkpatrick,226 stating that courts should grant a section 1404(a) transfer upon a lesser showing of inconvenience than that required for forum non conveniens. 227 Courts should refocus the forum non conveniens inquiry to more closely approximate the original standard articulated for the doctrine-whether a particular forum is clearly inconvenient-and steer away from the inclination to impose a most- suitable-forum standard. A proper jurisdictional inquiry which takes the convenience of the parties into account should precede any forum non conveniens inquiry. 228 If this jurisdictional inquiry fails to eliminate a particular case, a defendant could then bring a forum non conveniens motion under a stricter standard. This standard should be based on the Gulf private and public factors, 229 with some modifications. First, in reviewing the private factors, because the jurisdictional inquiry takes the convenience of the defendant into account, the new balancing test should focus more on the factors related directly to the litigation. For example, a court should assess the availability and the cost of transporting witnesses, the accessibility of various documents and tangible evidence, and the possibility that use of a foreign language would seriously impede the flow of litigation.230 In assessing these factors, a court should examine the offsetting effects that modem technological advances bring to bear on convenience. 231 Furthermore, the court should inquire into the willingness of the foreign plaintiff to pay for a share of these costs. In reviewing the public factors of Gulf, a court should not weigh the effects on docket-clearing too heavily. The personal jurisdiction inquiry, in assessing the relevant contacts between the plaintiff, defendant, and forum, should have eliminated cases with little or no bearing on the forum itself. For the same reason, courts should not

226 349 U.S. 29 (1955). 227 See supra notes 48-53 and accompanying text. 228 See supra notes 112-37 and accompanying text. 229 See supra notes 27-40 and accompanying text. 230 See Gulf, 330 U.S. at 508. 231 See supra notes 205-10 and accompanying text. 1992] NOTE-FORUM NON CONVENIENS

worry that citizens of a community with little or no connection to the controversy will be called for jury duty. In evaluating the relevant factors, the trial court should not dismiss under forum non conveniens unless the balance of factors tips strongly in favor of the defendant. 23 2 This represents a return to the Gulf standard, and alleviates, although not completely, some of the problems and inconsistencies caused by the discretionary balancing that courts currently apply. In addition, courts should abolish the Piper standard, which states that a foreign plaintiff's choice of forum is entitled to less deference.23 3 Use of this standard has no apparent rationale. The Piper Court stated only that it was "less reasonable" to presume that a foreign plaintiff's choice of forum was convenient.23 4 However, this does not warrant a presumption that a foreign plaintiff's choice of forum is entitled to little weight. 23 5 A foreign plaintiff should receive the same deference a United States plaintiff would receive. The defendant should bear the burden of proving that this choice is inconvenient. It is unfair to force a foreign plaintiff to start out the inquiry with the scales tipped toward the defendant. A few federal court judges are attempting to use a stricter standard for forum non conveniens inquiries. The Second Circuit has been the most vocal about this stricter standard. In Carlenstolpe v. Merck & Co., 23 6 the court saw the factors for determining forum non conveniens as enmeshed in the merits of the underlying cause of action.23 7 This helps to focus the inquiry on those factors that bear directly on the smooth flow of the litigation. In Manu International, S.A. -v. Avon Products, Inc.,238 the court held that courts should not overshadow the central principle of Gulf, which states that "unless the balance [of factors] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 23 9 This is a move away from the trend to grant forum non conveniens dismissals on a lower showing of inconvenience, 240 by assimilating the forum

232 Gulf, 330 U.S. at 508. 233 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). 234 Id 235 Id 236 819 F.2d 33 (2d Cir. 1987). This case involved a Swedish plaintiff, who sued a NewJersey producer of a hepatitis vaccine, for injuries associated with use of the vaccine in Sweden. 237 Id. at 36. ("A forum non conveniens determination cannot be considered 'completely separate' from the merits of the action because such a determination requires an examination of the alleged culpable conduct to assess where the conduct took place and the relation of the conduct to the plaintiff's chosen forum."). 238 641 F.2d 62 (2d Cir. 1981). Here, a Belgian corporation sued a United States MNC for fraud in a contract dispute. 239 Id. at 65 (quoting Gulf, 380 U.S. at 508). 240 See supra notes 211-25 and accompanying text. 682 CORNELL LA W REVIEW [Vol. 77:650 non conveniens inquiry into the inquiry for transfer of venue under 24 1 section 1404(a). Additionally, in Fitzgerald v. Texaco, Inc.,242 the Second Circuit opted to dismiss a suit filed by German plaintiffs, because the inconvenience of a trial in New York "overwhelmingly outweighed" the convenience to the plaintiffs. 243 This case represents a return to the stricter standard advocated in the Gulf decision as well. The Fifth Circuit also attempted a return to a stricter standard in In re Air Crash Disaster Near New Orleans, La. 244 The court stated that the rationale for forum non conveniens is to prevent a court's process from becoming an instrument of abuse or injustice. 245

B. The Appellate Standard of Review for a Forum Non Conveniens Dismissal 1. The Present Standard: Abuse of Discretion The need for a stricter standard for determination of a proper forum non conveniens dismissal is even more compelling in light of the abuse of discretion standard appellate courts apply upon review of forum non conveniens determinations. The Gulf Court made clear that appellate courts may overturn a district court's determination of forum non conveniens only upon a showing of an abuse of discretion. 246 In Piper, the Court emphasized that no rigid rule gov- erns discretion; "[e]ach case turns on its facts." 24 7 This standard virtually insulates district court determinations of forum non conveniens, because the appellate court must allow the district court's decision to stand unless the balancing of the Gulf private and public ' 248 factors is clearly "unreasonable.

241 28 U.S.C. § 1404(a) (1988). 242 521 F.2d 448 (2d Cir. 1975). In this case, the estates of deceased German seamen brought a wrongful death action against the United States oil company, alleging that Texaco's failure to mark the wreckage of a sunken ship caused the accident. 243 Id. at 451. 244 821 F.2d 1147 (5th Cir. 1987) (en banc), cert. granted, 490 U.S. 1032 (1989). 245 Id. at 1153-54. 246 330 U.S. at 508. 247 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981) (quoting Williams v. Green Bay & Western R.R., 326 U.S. 549, 557 (1946)). 248 See, e.g., Stewart v. Dow Chem. Co., 865 F.2d 103, 105 (6th Cir. 1989) (as long as balance of factors reasonable, let district court's forum non conveniens dismissal stand); DeShane v. Deere & Co., 747 F.2d 1194 (8th Cir. 1984) (district court did not abuse discretion in forum non conveniens dismissal); Overseas Nat'l Airways, Inc. v. Cargolux Airlines Int'l, S.A., 712 F.2d 11, 14 (2d Cir. 1983) (with no clear abuse of discretion, the lower court determination should stand); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 634 F. Supp. 842, 845 (S.D.N.Y. 1986) (forum non conveniens determination should be within the "sound discretion" of the trial court (citing Piper,454 U.S. at 257)), aff'd, 809 F.2d 195 (2d Cir.), cert. denied, 484 U.S. 871 (1987). 1992] NOTE-FORUM NON CONVENIENS 683 This insulating standard of appellate review further weakens the seriousness with which courts will inquire into the relevant factors for a forum non conveniens determination. Justice Black warned of this in his dissent to the Gulf case: The broad and indefinite discretion left to federal courts to decide the question of convenience... will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible.249 Some commentators agree with Justice Black. Professor Robertson states that "[t]here is now too much discretion and too little clarity in [the] application" of forum non conveniens, especially given the fact that courts tend to use it as an escape hatch from jurisdictional inquiries. 250 While a determination of personal jurisdiction is a constitutional inquiry in which the trial court has limited discretion, the determination of forum non conveniens carries much broader discretion.25' Professor Stein notes that, although most of the policies addressed in a forum non conveniens inquiry are also addressed in jurisdictional inquiries, the former is a "doctrine practically devoid of hard rules, vested in the discretion of the trial court, and beyond effective appellate review."' 252 This seems to be an inconsistent conclusion, given the similar interests the doctrines of personaljurisdiction and forum non conveniens purport to protect. 253 Some federal judges have also been critical of the abuse of discretion standard for review of forum non conveniens determinations. In his article Indiscretion About Discretion,254 Judge Henry Friendly argued that the standard grants too much deference to the trial judge. He claimed that, although the Piper Court set forth a standard of "substantial deference" to the district court, it actually required almost "complete obeisance." 255 Judge Friendly stated that this is not a "healthy" standard of review, especially in modem times when crowded court dockets might cause a trial judge to be subconsciously biased when considering dismissal based on forum non conveniens. 256 Judge Friendly further noted that a major prob-

249 330 U.S. at 516 (Black, J., dissenting). 250 Robertson, supra note 137, at 399. For a discussion of the use of forum non conveniens as a way out ofjurisdictional inquiries, see supra notes 136-46 and accompanying text. 251 Gulf, 330 U.S. at 508. 252 Stein, supra note 137, at 793-94. See also Stewart, supra note 137, at 1278-79 (while dismissal on the grounds of forum non conveniens is discretionary, dismissal for lack ofjurisdiction is not, the latter being a constitutional inquiry). 253 See supra notes 105-46 and accompanying text. 254 Hon. HenryJ. Friendly, Indiscretion about Discretion, 31 EMORY L.J. 747 (1982). 255 Id. at 751. 256 Id. at 754. CORNELL LA W REVIEW [Vol. 77:650 lem with the abuse of discretion standard is the range of difference among its various definitions. 257 He argued that there are at least a half dozen different definitions of " 'abuse of discretion,' ranging from ones that would require the appellate court to come close to finding that the trial court had taken leave of its senses to others which differ from the definition of error by only the slightest 8 nuance." 25

2. The Proposed Standard: De Novo Review

In order to ensure the continued vitality of forum non conveniens, appellate courts should adopt a stricter de novo standard of review. The factors courts should consider to determine forum non conveniens motions are jurisdictional in nature, because they can lead to dismissal of the case. 25 9 Consequently, the trial court is in no better position to review these factors than the appellate court. Given that the balance of the factors must weigh heavily in favor of the defendant before a court may dismiss, the appropriate inquiry is not whether the trial court has reasonably balanced the factors, but whether the trial court's balancing was correct. This stricter appellate standard, coupled with a narrower and more definitive test for district courts to apply when examining a forum non conveniens motion,2 60 will help ensure that defendants are not using the doctrine of forum non conveniens merely to work an injustice. At the same time, it will prevent plaintiffs from bringing truly inconvenient lawsuits which serve only to harass defendants and impose on the time and resources of an unconnected forum.

257 Id. at 763. 258 Id. For similar reasons, Judge Oakes of the Second Circuit has also criticized the abuse of discretion standard of review for forum non conveniens cases. A self-pro- claimed opponent of the modem application of the doctrine of forum non conveniens, Judge Oakes feels the Piper Court went too far in applying the abuse of discretion standard. He calls for a complete re-examination of the doctrine in light of modern advances in transportation and communication technologies. See Overseas Nat'l Airways, Inc. v. Cargolux Airlines Int'l, S.A., 712 F.2d 11, 14 (2d Cir. 1983) (Oakes, J., concurring) (calling for re-examination of entire doctrine). See also Fitzgerald v. Texaco, Inc., 521 F.2d 448,456 (2d Cir. 1975) (Oakes, J., dissenting) (claiming that given technological advances, "no forum is as inconvenient as it was in 1947" when Gulfwas decided), cert. denied, 423 U.S. 1052 (1976). Judge Oakes also advocates a closer review of the district court's determination of forum non conveniens. See, Cargolux, 712 F.2d at 15 (Oakes, J., concurring). 259 See Crowell v. Benson, 285 U.S. 22, 54 (1932) (determinations of fact are fundamentally jurisdictional when their existence is a condition precedent to the operation of a statutory scheme). 260 See supra text accompanying notes 226-35. 1992] NOTE-FORUM NON CONVENIENS 685

VI CONCLUSION In suits between foreign plaintiffs and wealthy United States- based MNCs, modern forum non conveniens doctrine is not serving its original purposes of prohibiting serious inconvenience to the 26 1 parties or of evaluating the realities relevant to assuring justice. Foreign plaintiffs may be denied a forum to press valid claims, despite the fact that jurisdictional tests are satisfied and no real inconvenience is shown against the domestic defendant. The standard courts use to determine the appropriateness of a forum non conveniens dismissal has weakened over the years since the Gulf decision, while, at the same time, any inconvenience actually suffered by MNC defendants has been greatly reduced due to advances in technology. Once a court has conducted a proper inquiry into personal jurisdiction, which includes a careful examination of the contacts between the defendant and the forum state, the court should then dismiss the case on grounds of forum non conveniens only if the choice of forum is truly harassing to the defendant, or if the forum has such limited contact with the cause of action that a trial on the merits would be a substantial waste of judicial time and resources. Given a diligent personal jurisdiction inquiry, few cases should re- main that satisfy this higher standard for forum non conveniens. Those dearly inconvenient cases that nonetheless fulfill the personal jurisdiction inquiry can best be determined by a stricter standard of forum non conveniens. This stricter standard will look to those factors that contribute to the smooth flow of litigation, such as the cost and feasibility of transporting witnesses and evidence. A court should only grant the dismissal under this stricter standard if the balance of the factors is strongly in favor of the defendant. In assessing the relevant factors, the current presumption that a foreign plaintiff's choice of forum is inconvenient should be abolished; instead the defendant must prove that the plaintiff has chosen a clearly inconvenient forum. In addition to the higher standard for a grant of forum non conveniens by the district court, appellate courts should have more power to overturn a district court's determination of forum non conveniens through a de novo review standard. Both of these stricter standards, at the trial and appellate level, will promote the continued vitality of the doctrine of forum non conveniens. As a result, courts will continue to be able to dismiss cases that are so truly inconvenient as to justify dismissal. At the same time, MNCs

261 Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 527 (1947). 686 CORNELL LAW REVIEW [Vol. 77:650 will have to account for injuries they cause abroad and will not be able to escape "justice" merely because the plaintiffs are not United States citizens. Jacqueline Duval-Majort

t My heartfelt thanks to Professor Robert B, Kent of the Cornell Law School for his comments on this Note and his support and advice throughout my three years of law school. All mistakes, of course, are my own. I also wish to thank Doug Steam and Derrick Lopez for their guidance. Special thanks to my husband,John Major, for always being there. This Note is dedicated to Chelsea Claire Duval Major, who experienced the first five drafts in utero, and waited just long enough to let me finish.